STATE v BABBIT

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No. 13872 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 THE STATE OF PdONTANA, Plaintiff and Respondent, -VS- MERLIN T. BABBIT, Defendant and Appellant. Appeal from: District Court of the Fourth Judicial District, Honorable Jack L. Green, Judge presiding. Counsel of Record: For Appellant: Smith, Connor, Van Valkenburg & Larrivee, Missoula, Montana Noel Larrivee argued, Missoula, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Brenda J. Gilmer argued and Marc F. Raciot argued, Attorney General's dffice, Helena, Montana Robert L. Deschamps, I11 argued, County Attorney, Missoula, Montana Submitted: November 29, 1977 Decided : FEB 1- 1a 9 M r . J u s t i c e Gene B . 3 a l y d e l i v e r e d the Opinion of t h e Court. Defendant Merlin T . Babbit , a nonindigent a d u l t , appeals from a f i n a l judgment of conviction and o r d e r d e f e r r i n g imposit i o n of sentence and e s t a b l i s h i n g terms and conditions of probation. On February 1 7 , 1977, t h e Deputy County Attorney of Missoula County f i l e d an Information i n t h e D i s t r i c t Court, Missoula County, charging defendant with t h e crime of c r i m i n a l possession of dangerous drugs, weighing more than one gram, i n v i o l a t i o n of s e c t i o n 54-133, R.C.M. 1947. On March 3 , 1977, arraignment proceedings were conducted i n t h e D i s t r i c t Court. Defendant entered a plea of g u i l t y t o t h e crime a s charged i n t h e Information. A presentence i n v e s t i g a t i o n r e p o r t was ordered by t h e D i s t r i c t Court and t h e time f o r pronouncement of sentence was s e t f o r March 1 7 , 1977. On t h a t d a t e t h e D i s t r i c t Court deferred t h e imposition of sentence by t h i s order: "The Court ORDERS t h a t t h e imposition of sentence be deferred f o r a period of two (2) y e a r s , and t h a t during t h i s period of time t h e Defendant s h a l l comply with t h e terms and conditions f u r t h e r s e t f o r t h i n t h i s Order. "The terms and conditions of probation a r e : "1. That t h i s Court r e t a i n j u r i s d i c t i o n . "2. That t h e Defendant s h a l l make payment of Two Hundred Dollars ($200.00), t o t h e County of Missoula, through t h e Clerk of D i s t r i c t Court. "3. That t h e Defendant must obey i n s t r u c t i o n s and comply with a l l d i r e c t i o n s of t h e Department of I n s t i t u t i o n s , Division of Adult Parole and Probation of t h e S t a t e of Montana. "4. That t h e Defendant s h a l l submit himself, h i s residence and v e h i c l e t o search a t any time by lawful a u t h o r i t i e s , without a search warrant. "5. That t h e Defendant s h a l l o b t a i n a l c o h o l i c counseling deemed necessary by h i s Probation O f f i c e r . "6. That t h e Defendant s h a l l n o t v i o l a t e t h e law. 7 That upon v i o l a t i o n of any of t h e conditions above, Defendant s h a l l be brought before t h i s Court f o r imposition of sentence." A t t h e time t h e D i s t r i c t Court announced t h e terms and conditions of probation, defendant made a timely and s p e c i f i c o b j e c t i o n t o t h e condition of probation r e q u i r i n g defendant make payment of $200 t o t h e County of Missoula through t h e c l e r k of t h e D i s t r i c t Court. The s o l e i s s u e before t h i s Court on appeal i s whether t h e D i s t r i c t Court may impose a payment of $200, payable t o Missoula County, a s a condition of probation a f t e r defendant plead g u i l t y t o the crime of criminal possession of dangerous drugs, a felony punishable by imprisonment i n t h e s t a t e p r i s o n n o t t o exceed 5 y e a r s , and t h e D i s t r i c t Court deferred imposit i o n of sentence. I n Montana deferred imposition of sentence i s c o n t r o l l e d by Montana's sentencing s t a t u t e , s e c t i o n 95-2206, R.C.M. 1947, (subsequently amended i n Section 36, Chap. 184; Section 1, Chap. 436; Section 1, Chap. 580; and Section 12, Chap. 584, Session Laws 1977). I t provided i n r e l e v a n t p a r t : "95-2206 --'Sentence. Whenever any person has been found g u i l t y of a crime.. o r offense upon a v e r d i c t o r a plea of g u i l t y t h e c o u r t may: "(1) Defer imposition of sentence f o r a period n o t t o exceed one (1) year f o r any misdemeanor; f o r a period n o t t o exceed t h r e e ( 3 ) years f o r any felony. The sentencing judge may impose upon t h e defendant any reasonable r e s t r i c t i o n s o r conditions during t h e period of t h e d e f e r r e d imposition. Such reasonable r e s t r i c t i o n s o r conditions may include: ( a ) j a i l base r e l e a s e ; "(b) j a i l time n o t t o exceed n i n e t y (90) days; " (c) conditions for probation; " (d) restitution; any other reasonable conditions deemed "e () necessary for rehabilitation or for the protection of society; any combination of the above." "f () " Thus the issue becomes whether the payment of $200 to the County of Missoula is a reasonable condition of probation imposed for the objective of rehabilitation and the protection of society. This Court's reported cases which speak to the validity of conditions of probation subsequent to entry of a guilty plea and deferred imposition of sentence haw been limited almost entirely to defendants who have challenged the District Court's revocation of deferred imposition of sentence. Petition of Dunn, (1971), 158 Mont. 73, 488 P.2d 902; State v. Thorsness, (1974), 165 Mont. 321, 528 P.2d 692; State v. Emmett, (1976), Mont . , 557 P.2d 289, 33 St.Rep. 1172. The cases in Montana specifically challenging conditions of probation imposed after entry of a plea of guilty and deferred imposition of sentence have attacked the imposition of jail time as a condition of probation. State v. Openshaw, (1977), - . Mont 3 565 P.2d 319, 34 St.Rep. 516; State ex rel. Woodbury v. District Court, (1972), 159 Mont. 128, 132, 495 P.2d 1119; State v. Drew, (1971), 158 Mont. 214, 217, 490 P.2d 230. Our holding in these cases was that "in all cases when there are no special sentencing provisions the wide discretion of section 95-2206, R.C.M. supra. 1947, applies." State ex rel. Woodbury, "The court can impose conditions of probation during this time of deferment which are not in contradiction to a stay of sentence or deferred sentence." State v. Drew, supra. However, this Court has not been called upon to consider the validity of a condition of probation requiring the payment of money t o a court a f t e r e n t r y of a plea of g u i l t y and deferred imposition of sentence i n accord with s e c t i o n 95-2206. Other j u r i s d i c t i o n s have considered t h e i s s u e r a i s e d b y defendant with divergent conclusions. The c o u r t s of Arizona have taken t h e s t a n c e t h a t i n t h e absence of s p e c i f i c s t a t u t o r y language, where defendant has plead g u i l t y t o a felony t o which no f i n e i s prescribed and imposition of sentence i s suspended, i t is improper t o impose a f i n e a s a condition of probation. v. P i t t s , (1976), 26 Ariz.App. State 390, 548 P.2d 1202, 1203. C a l i f o r n i a c o u r t s on t h e o t h e r hand, i n upholding t h e imposition of f i n e s a s a condition of probation, have held a condition of probation w i l l n o t be i n v a l i d u n l e s s i t "(1) has no r e l a t i o n s h i p t o t h e crime of which t h e of fender was conv i c t e d , (2) r e l a t e s t o conduct which i s not i n i t s e l f c r i m i n a l , and (3) r e q u i r e s o r f o r b i d s conduct which i s n o t reasonably related to future criminality 124 Cal.Rptr. * * *. I" People v. Lent, (1975), 905,908, 15 C.A.3d 481, 541 P.2d 545,548. Under s t a t u t o r y provisions much t h e same a s ont tan as, t h e C a l i f o r n i a c o u r t seems t o allow a f i n e under our f a c t s . However, t h e Lent case found a r e l a t i o n s h i p t o t h e crime of which defendant was convicted [ t h e f t ] b u t allowed, a s a condit i o n of probation, a f i n e i n a l a r g e r amount than r e s t i t u t i o n , which included t h e amount of a Count of .which defendant was acquitted. The Court of Appeals of Oregon, i n t e r p r e t i n g Oregon s t a t u t e s i n S t a t e v. Culbertson, 1977, 29 0r.App. 363, 563 P.2d 1224, 1229, h e l d : "* ** t h e standard a g a i n s t which t h e v a l i d i t y of conditions [of probation] imposed by t h e c o u r t o r the probation o f f i c e r i s t o be measured i s whether they bear a reasonable r e l a t i o n s h i p t o t h e reformat i o n of t h e offender o r t h e p r o t e c t i o n of t h e public." (Emphasis supplied.) The United S t a t e s Court of Appeals, Second C i r c u i t , r e c e n t l y considered t h e s u b j e c t of t h e v a l i d i t y of c o n d i t i o n s of probation i n United S t a t e s v. P a s t o r e , (2nd C i r , 1976), 537 F.2d 675, 679, and noted: "The p r o p r i e t y of conditions on probation r a i s e s d i f f i c u l t i s s u e s because t h e r e l e v a n t s t a n d a r d s , a s with sentencing g e n e r a l l y , a r e e i t h e r vague o r non-existent. *** " * * * The Ninth C i r c u i t has s t a t e d : * * j u d i c i a l d i s c r e t i o n i n probation matters i s l i m i t e d only by t h s requirement t h a t t h e terms and conditions thereof bear '!a reasonable r e l a t i o n s h i p t o t h e treatment of t h e accused and t h e protect i o n of t h e public."' United S t a t e s v. Nu-Triumph, I n c . , 500 F.2d 594, 596 (1974). S i m i l a r l y , i n Porth v. Ternplar, supra, a t n o t e 15, t h e Tenth c i r c u i t stated: "I* "'The sentencing judge has a broad power t o impose conditions designed t o s e r v e t h e accused and t h e community. The only l i m i t a t i o n i s t h a t t h e conditions have a reasonable r e l a t i o n s h i p t o t h e treatment of t h e accused and t h e p r o t e c t i o n of t h e p u b l i c . "' (Emphasis supplied.) Defendant i n h i s r e p l y b r i e f on appeal contends f i n e could n o t be imposed i n t h i s case. "* * * a F i r s t , because t h e s u b s t a n t i v e s t a t u t e ( s e c t i o n 54-133) does n o t a u t h o r i z e a fine. Second, because a p l a i n reading of t h e sentencing s t a t u t e ( s e c t i o n 95-2206) precludes t h e imposition of a fine." Section 54-133, R.C.M. c o n t r o l l i n g i n t h i s case. 1947, i s not t h e " s u b s t a n t i v e s t a t u t e " Section 54-133 would be c o n t r o l l i n g only i f t h e defendant were being sentenced f o r t h e crime t o which he plead g u i l t y . Here, sentence has been d e f e r r e d and c o n d i t i o n s of probation imposed pursuant t o s e c t i o n 95-2206. Thus defendant w i l l n o t be sentenced u n t i l defendant requests sentencing i n l i e u of probation o r probation i s revoked because of defendant's violation of a condition of probation. At the termination of the time of deferment the District Court may accept a plea withdrawal, strike the plea of-guilty,and order the charge dismissed in accord with section 95-2207, R.C.M. 1947. State v. Drew, supra; Petition of Gray, (1973), 163 Mont. Section 95-2206 sets forth the guidelines of reasonableness, rehabilitation, and the protection of society as the criteria to be utilized in evaluating the conditions of probation. All jurisdictions heretofore discussed seem to agree with the guidelines set forth in section 95-2206, above set forth, even though some have less strict statutory mandates than Montana. The Arizona Court in Pitts reasoned that: "* * * Imposition of a fine is the passing of a sentence and not the suspension of sentence. The fact that the court terms it a condition of probation does not render it any the less a sentence. We are not here dealing with a condition of probation which requires the defendant to make restitution to the crime victim. rhat would be a wholly different matter . I ' 548 P. 2d 1203. (Emphasis supplied) The Arizona Court further reasoned that if a fine [as here and not related to our guidelines] were to be allowed as merely a condition of probation, the default in payment could result in revocation of probation and imprisonment for the maximum period allowed by the statute for the crime for which defendant was convicted. In that event the failure to pay a small fine may result in defendant's imprisonment far exceeding the period ordinarily permitted. We agree with the rationale of the Arizona Court. We fail to find a reasonable association between the fine imposed here and the crime committed. Neither do we find it to be a reasonable or necessary condition of probation or for protection of the public. Therefore, we hold the imposition of condition of probation Number 2, which requires the payment of $200 to Missoula County as a condition of probation, a nullity and of no force or effect. We Concur:

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